WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: July 9, 2019

Court File No.: Toronto, College Park 18-75001974

Between:

Her Majesty the Queen

— and —

Martin Ngigi Ngigi

Before: Justice J. W. Bovard

Heard on: January 21, 22, 23, 2019

Reasons for Judgment released on: July 9, 2019

Counsel:

Ms. S. Gray — counsel for the Crown

Mr. Mwangi — counsel for the defendant Martin Ngigi

Reasons for Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Martin Ngigi on charges of sexual assault, forcible confinement and breach of probation on October 27, 2017.

[2] Mr. Ngigi and the complainant had met briefly on several occasions before the day in question. On the day in question they ran into each other in the lobby of Mr. Ngigi's apartment building. The complainant was upset about not being able to contact her boyfriend. Mr. Ngigi knew her boyfriend. He lived in the same building.

[3] Mr. Ngigi and the complainant spoke briefly and decided to go to a nearby park to talk. Mr. Ngigi had a bag with a few beers. He drank one beer while at the park. The complainant smoked marijuana. They were there between one and two hours. The complainant says that during this time Mr. Ngigi took out his penis and came at her with it in his hand three times. She avoided him.

[4] She wanted to leave but she did not know the way out of the park. He tried to keep her there. They struggled. During this, he touched her body, including her breast, in an effort to confine her there. She tried to choke him with one hand to get him off of her.

[5] Mr. Ngigi denies these things. He said that nothing untoward happened until they were at the end of the path out of the park and the complainant tried to take a beer from him without his consent. A struggle ensued during which she tried to choke him.

[6] After several minutes they stopped fighting and left the park separately. A public transit bus arrived at a bus stop nearby. They both got on the bus, which was headed to the subway station.

[7] The complainant told the driver what happened. Mr. Ngigi tried to get off of the bus before getting to the subway station but the driver would not let him. She drove to the subway station and circled around it several times waiting for the police to arrive. They did not come so she stopped the bus and let everyone off. Mr. Ngigi got off the bus and left the subway station. One of the passengers on the bus followed him, but soon lost sight of him. The police arrested Mr. Ngigi later.

Issues

[8] The issues are the credibility and reliability of the witnesses' evidence.

The Evidence

Admissions

[9] Counsel submitted an agreed statement of facts in which the following is admitted:

• Identity of the accused
• Date and time of the alleged offences
• The jurisdiction of the court
• On the day in question the accused was on probation and subject to a probationary condition that he keep the peace and be of good behaviour, which condition he understood.
• 20 meters from a bench in the parkette to which the complainant refers in her evidence, a Molson Canadian beer can was found in the grass on November 8, which had the accused's DNA on it.
• Pall Mall cigarettes were found in the parkette on the ground by the bench.
• The accused lived at […], Toronto on the day in question.
• The accused was on a bus on route to Main Station as shown in the video surveillance tape.
• Mr. Sardelis followed the accused onto the westbound subway platform where they both stood until the westbound subway went through without stopping. After the train went through the station the accused and Mr. Sardelis went up the stairs and out onto the street.

Oral Evidence

[10] On the day in question, the complainant finished work at approximately 6 p.m. She went to meet her boyfriend, J. He lived in an apartment building at […address…]. She went to his apartment and knocked on the door, but he was out at the time. She went to the lobby of the building to wait for a while to see if he would show up. He never came.

[11] While she was waiting, Mr. Ngigi appeared. She had met him on a couple of occasions two months before while she was on her lunch break having a smoke in an alleyway. He was there with some of his friends. They exchanged telephone numbers.

[12] He said hello and asked her how she was. They talked and he asked her if she wanted to "hang out". She agreed. He told her to wait a minute and went upstairs in the elevator to get something and returned. She stayed in the lobby waiting for him.

[13] She said that she had seen Mr. Ngigi three times before she started dating J. The fourth time that she saw him was about three weeks before the day in question. Mr. Ngigi showed up at J.'s door while she and J. were inside. He said that he had nowhere to live. She persuaded J. to let him in. They told him that they were "busy and stuff like that, so to go into the other room".

[14] After this, she saw him in passing one or two times, but she did not approach him. The day in question was the fifth or sixth time that she had seen him. In her statement to the police she said that it was the fourth time that she had seen him. She explained that she saw him in passing on occasion, such as at the LCBO. She counted seeing him in passing as seeing him.

[15] She decided to "hang out" with him to see if they could be friends. The Crown asked her what Mr. Ngigi was wearing. She said that she thought that "he was all matching, like something like his shoes went with his jacket and he had a hat". He had on "Jean pants, kind of baggy. I think they were like black or something". In cross-examination, defence counsel reminded her that in her statement to the police she said that he did not have on a hat. She readily agreed that she was mistaken about the hat. He did not have one. She explained:

his hair is pretty dark. Yeah, so it was – I made the same mistake. I thought he had a hat, he didn't have a hat. In my memory, it's the same. Like, in my memory when I picture his face, it's within the dark, we're struggling, that kind of thing. I thought he had a hat, no it was his hair. In my memory I thought he had a hat, because it looks the same in my head.

[16] Further in cross-examination, when defence counsel asked her if she had on a white t-shirt, she replied that:

Yes. I don't – I don't know. Why – I don't – I can't remember what I was wearing. I can't remember what he was wearing. I can't remember what my mother was wearing two months ago when I saw her. I mean, I'm sorry, I can't answer your questions.

[17] This contradicts her testimony in-chief where she described what he was wearing.

[18] As they left the building she asked him where he wanted to go. He suggested that they go to a nearby park. At first, in cross-examination she said that he was sober at this time. A few questions later, she said that she "can't answer that question. I did not take his blood alcohol level". She could not tell from how he was acting whether he was sober or not because she does not know him well enough.

[19] They went to the park and started "hanging out". It was dark. It was between 6:30 PM and 7 PM. The park was not well lit. The closest light was from the street. She could not see any persons from where they were. A person walking a dog passed by.

[20] Mr. Ngigi had a beer "that he was drinking from his backpack". He had beers in his backpack. She did not remember what brand of beer he was drinking. She also thought that he had a plastic bag with some beers in it, too. Both in her statement to the police and in cross-examination she said that he had one beer in the park. He also had a "joint" that he said he got for her. She never asked him for a beer.

[21] In cross-examination, defence counsel asked her if Mr. Ngigi had a backpack. She said that she could not answer the question. She could not say "one hundred percent".

[22] However, she went on to say a few moments later that "I still think he did have a backpack, yes". She said that whenever she has seen him he always had a backpack.

[23] While she smoked the joint, he drank the beer and they talked. He was inebriated. She did not mention this in her statement to the police. She offered him some of the joint, which he refused. He said he does not smoke. It "gets him horny". She continued smoking. Then he asked her for some so she passed him the joint, which he smoked. He also drank some more.

[24] In total, that day she smoked about one gram of marijuana. In re-examination, the Crown asked her if it affected her recollection of the events. She said "Not really". But she admitted that she made some mistakes in her statement to the police. For example, regarding what Mr. Ngigi was wearing. But when she gave the statement she was still "kind of like, in shock or something. But, for the marijuana, no, I – I don't think it – it messed with my memory".

[25] She started smoking a du Maurier cigarette. He told her that she made him "horny and stuff like that". He took out his penis and approached her. In cross-examination, she said that he approached her with "an oblong object in his hands". As he approached her he was "kind of rubbing it". She remembers this because earlier:

I had made a comment saying, oh, I thought you didn't do that. So, he must have – must have talked about it earlier on, that, you know, about masturbation or something. And I was saying, you know, I thought you said you didn't do that, but you're doing it right now in a park, so.

[26] He came within a foot and a half of her. She was sitting on top of a picnic table. His penis was at the level of her breasts. She tried to burn it with her cigarette because she was "very disturbed by it". He backed off but he did not put away his penis. She did not remember with which hand he was holding his penis.

[27] He came at her again and she tried to burn him again. He told her not to do that. She told him not to do what he was doing. He put his penis away and sat down. She finished her cigarette and decided to leave but he would not let her leave.

[28] She could not recall how he took out his penis. She said:

... like, I don't really care about this guy so like, I don't really look at him that much or – or pay that much attention to what he says to me. So, I can't really – for questions about him it's really hard for me to answer, 'cause I don't pay attention to him enough to answer a lot of these questions. As for what you said about what he was wearing and how he took his penis out, I was just smoking. I was like, lighting my cigarette. Like, it was about, like a quarter in and I look up and there's – he's holding something and I look at it, and it's a brown cock, so.

Q. Okay.

A. Through his zipper of his pants.

Q. Okay.

A. His pants were still up.

[29] The defence showed her that she told the police in her statement that he was wearing track pants. She finally said that she could not remember if they had a zipper.

[30] The Crown asked her if his penis was erect. She said:

I tried not to look. Didn't want to see it. Didn't want to be there. I think it was semi, the second time that he approached me and I tried to burn it, 'cause at that point I remember I was definitely looking at it, 'cause he was – he was holding it with his hand and he was kind of moving it. Like, wherever I tried to, like, put the cigarette, he would like, move it away. So, I remember I was like, looking at it for a while, making sure like, I'd actually burn it if he like, got too close.

[31] When the Crown asked her to recount this episode, she said that on the first approach she made him back away by putting her hand out while holding her cigarette with the other hand. She pushed him away until he backed up. It was only the second time that he came at her with his penis that she "put the cigarette towards his penis 'cause honestly the hand didn't work, so". This time he was right at her feet.

[32] She had to move her cigarette towards his penis three times before he backed away. When he backed off he put it back in his pants.

[33] In cross-examination, she stated that as the episode progressed she had trouble seeing because it was dark. She agreed that she was not looking at Mr. Ngigi while she was sitting on the park table smoking and he allegedly pulled out his penis. It was not until he came at her with his penis that she saw it. She stated:

A. I always try not to look at that guy ever since, you know he started saying he liked me. But, I mean, like, no, I was not looking at him directly at that time. I do not believe so. I was lighting my cigarette and smoking it.

Q. I put to you that you believed Martin was holding something as he was getting up, but you did not know what he was holding and you did not see his penis, do you agree or disagree with that statement?

A. I agree.

Q. Sorry?

A. I agree.

Q. So, you agree that when Martin was in your presence, in the park ...

A. Okay.

Q. ... you did not see his penis, right?

A. Not until he started approaching me with it, no.

Q. And – and sorry, so when he approached you then at that point, you saw ....

A. Yeah, because he was like directly in front of me, walking towards me with something in his hand, around his groin area.

[34] When she gave her statement to the police they asked her about Mr. Ngigi having his penis out. She said that he took it out "probably before stood up (sic) or right after, 'cause I wasn't really, like looking". She said that she told him to "walk it off". He got up "he started walking around, even though I thought, you know, he might be holding something down there".

[35] She agreed that when the police officer asked her how long Mr. Ngigi had his penis out and "what was happening" she told the officer that she was "not really looking there". She knew that he might be holding something, but she was not looking at his penis. Moreover, when she testified in-chief that his penis was semi-erect, she was just guessing.

[36] However, she "whole heartedly' disagreed with the defence that Mr. Ngigi did not "take out his penis or show [her] anything about his penis". In re-examination, the Crown took her to portions of her statement to the police in which she mentioned the word "penis". The Crown said that this was to counter the defence's suggestion that she did not use that word.

[37] Mr. Ngigi walked around a bit while she smoked her cigarette. Then he sat on the bench with her and they talked. When she finished her cigarette she told him that she wanted to leave. She told him that he had to show her the way because she did not know where the path was. They were in a very wooded area.

[38] They got up to leave. She was high. She thought that he was drunk because he was acting different with her than before. Previously, he was shyer in his flirtation with her. This time, he talked and walked around a lot. He approached her in new ways. He was different from how he was before. He spoke slower, too. And his movements were "more lazy or something". She agreed that he "got drunk way too fast" for the amount that he had drunk. She thought that he was more of a "lightweight" than she was.

[39] He walked in front of her with his beers "and stuff". He threw a beer can into the bushes. She made a remark about how she used to be an environmentalist and that she did not like littering. This upset him. He stopped and looked at her in a way that scared her, considering "the whole penis stuff before".

[40] He told her that it was her fault because she made him horny, so she had to help him deal with it. She thought that he wanted to have sex with her. She was afraid of the "rapey vibe from him". She told him. He got insulted and got "really angry". He came at her, grabbing her. It hurt her. She "kind of freaked out". He told her to apologize, so she did. He asked her if he could pay her. She thought that he meant pay her for sex. She said no.

[41] The sequence of these events was not clear from her evidence. She said that it was close to "the beginning" before he started pulling her, before he held her head and shoulders, and before she dropped her bag, all of which she recounts now.

[42] She tried to avoid him but he kept stepping in front of her and would not let her pass. She was trying to find the way to the path out of the park. She "could kind of see it". She was trying to get in front of him but he would not let her. He was drunk. He looked at her in an angry and aggressive manner. He started grabbing her arm and pulling her. He grabbed her shoulders. She had to "kind of like, spin out of it". His grip loosened, but he managed to hold on to her top.

[43] She dropped her bag. When she tried to pick it up he grabbed her head and held it. He also grabbed her shoulders. He held both of them "down at his waist". He just stared at her. Whenever she moved he moved in front of her. This really upset her because she was trying to get around him and he would not let her. For a small guy he is really strong. He hurt her.

[44] In cross-examination, defence counsel asked her about the part of her statement to the police where she explained to the officer what Mr. Ngigi was doing with her head. He referred her to a part where "you talk about Mr. Ngigi holding your head, he's pulling on it and you turned the opposite direction, so his hands was (sic) not on your head anymore …" She agreed that this was the only part in her statement where she mentioned that Mr. Ngigi held her head and pulled it.

[45] She replied that,

Yeah, it was the same incident I mentioned earlier [in examination-in-chief]. He held my head down to his waist and he was pulling on it, like towards thing, so what if I didn't want to tell that to the police, like ....

Q. So ....

A. It's the same situation. It's just I'm saying more detailed now then (sic) I did then, 'cause it was probably embarrassing.

[46] At one point, which is unclear from her evidence, she tried to pull his hands off of her. She could not get free of him so she reached up with one arm and "tried her best to choke him". She explained her effort as "die or back off". Defence counsel asked her to explain this expression. Her words explain it better than I could:

… the way that he was coming after me and grabbing at me and pulling on me, and making me drop all my stuff, and whipping his penis out previously and all of that stuff, that hurt me and destroyed me and disturbed me, were very, very frightening. And at the point where he held me and I could not move, I thought that I was going to get raped and killed in these woods and nobody would see. So, I reached for him and yes, I thought him or me. If he's not going to let me go I want to choke him until he passes out, if he dies, oh well.

[47] He was amused by this.

I think he like, smiled or something and like, he was like, ow, I'm trying to choke him, I'm trying to kill him, and I'm like, yeah. And he's like, you know, let go and I'm like, you let go of me first, and yeah. So, he did for a bit and then I got three steps and then he grabbed me.

[48] In cross-examination, defence counsel suggested to her that she used both hands to choke Mr. Ngigi. She was not sure "but I hope that it was two" … I know I choked him with my hands". Then she said that she was not able to say if she used one or two hands.

[49] After she picked up her bag he grabbed onto her some more. She told him that he did not have to do what he was doing. He said that he did not want to do it because he was not that kind of guy. He kept grabbing her: "It was just, you know, the let me go, and him saying he's not a bad guy, and I'm saying, then let me go and, you know".

[50] At one point during the grabbing, he cupped her breast. She did not remember this until the Crown refreshed her memory from her statement to the police in which she gestured what he did. She did not remember it "Probably 'cause I didn't want to". She could not remember if he did this more than once because she did not want to remember.

[51] In cross-examination, defence counsel challenged her saying that she never said anything in her statement to the police about Mr. Ngigi touching her breast. She said that she did not tell them about it because she thought what she had told them was enough to keep him away from her. She did not want to tell them "every single tiny thing".

[52] During the grabbing she kept breaking his grip by moving her arms in a circular motion. But he would grab her again tighter. She may have tried to gain control of the situation by grabbing the bag in which he had his beers.

[53] Their interaction was fluid. She described it like this:

There's like a lot of back and forth. So, like, he was like in front of me at first and I was following him, and then like, through all the altercations it would switch where he would be behind me. You know, like when I'd get those three steps forward he would be behind me, and then he'd walk up, he'd grab me and then I'd be, you know, either beside or behind him. And it just keeps switching back and forth, because I was trying to get away.

[54] At another point in her evidence she said that,

the entire time that we were on the path it was a struggle. It was a back and forth and we were moving up the path and a little down the path and then up the path, and then a little down the path and then up it.

[55] Then he stopped being aggressive. She told him to go get his beers. He stared at her while still holding onto her shirt. Then he let her go and started backing up. He went to get his beers. She looked around again and for the first time she was able to get her bearings. She headed for a bus stop. She checked the schedule and saw that the bus was due to arrive soon. But while she was waiting she saw Mr. Ngigi coming out of the woods. Then the bus came and she got on.

[56] She sat down on the bus. She knew that she had been the first person to get on the bus. She did not see Mr. Ngigi on the bus. Two or three more persons got on the bus, maybe four, then Mr. Ngigi got on. He passed by her. Her head was down, "freaking out".

he stood, like I was, you know the single chairs, there's like four single cars (sic) and then like a double chair and then it goes up the stairs, in the bus. I was like the second – like, right in the middle ...

Q. Okay.

A. ... and he was like, right by the door.

Q. So ....

A. And he was like, staring at me.

[57] She said that she saw him staring at her "in the corner of my eye". She saw the whites of his eyes. He did not get off at the next couple of stops. She was scared and hyperventilating. She went to the bus driver and told her that Mr. Ngigi just tried to rape her and she did not know what to do. Someone called the police. The bus driver called to report the incident to "whoever they talked to on their radio". Mr. Ngigi pressed the button to get off of the bus, but the driver would not let him off. She drove around until the police showed up.

[58] When the driver stopped at the subway station she let the people off of the bus. Mr. Ngigi jumped off and left. The passenger who called the police followed him.

[59] In the fall of 2018, approximately one year after the alleged offences, he tried to contact her on Facebook. She called the police. They said that they would send someone to take a picture of her phone, but they never did. It bothered her to keep seeing it on her phone so she eventually deleted the contact reference.

[60] Mr. Ngigi's account of the events is as follows.

[61] He lived at […address…] on the day in question. He had lived there since 2014.

[62] After work on the day in question he bought groceries and beer. He bought four Molson Canadian beers. In cross-examination, he said at first that when he bought the beer it was not for any specific purpose. Then a few moments later he contradicted himself saying that when he bought the beer "I intended that when we meet with Ken – occasionally we meet … We either sit down on a park and talk or we decide to go somewhere in a park – or in a pub, or a bar …so, it was just me having to buy some, so when we meet we can decide what we want to do".

[63] After he bought the groceries and beer, he went home. It was almost 6:00 p.m. when he got home. He put the groceries away. He had plans to meet his friend, Ken. They were going to meet downtown at a pub that they frequent at Jarvis Street and Carlton Street. Ken contacted him to tell him that he was going to be late. He was going to let him know later when he would meet him. They also changed the place where they were going to meet to somewhere between Coxwell and Main Station. So Mr. Ngigi "had to buy some time". His plan was to go to the park and drink one beer while he waited for Ken to contact him.

[64] The Crown asked him about his plan to meet in a pub. He said that it was not a pub. The Crown pointed out to him that he testified that they were meeting at a pub. He said that they were meeting at "Jarvis and Carlton". There are parks in the area where they could go to sit and talk before going to the pub. He wanted to have two beers for himself and two for Ken in case they decided to go elsewhere than the pub. But he clearly stated in his evidence in cross-examination that they were going to meet at a pub.

[65] He said that he left one beer in his apartment. The Crown asked him why he would do that since two were for him and two for Ken. He said that "it was just a decision. I just made – I could just leave one at home". He could have it later when he returned home.

[66] In examination-in-chief, he said that at approximately 6:10 p.m., he saw the complainant in the lobby of his building. She was "furious and seemed to have an issue with whoever she was communicating through the phone …" She was being very loud.

[67] In cross-examination, he stated that he first saw the complainant that day when he came home with the groceries. But this would be after he got home at almost 6:00 p.m. He said hi to her and went upstairs. Then he came back down and started conversing with her in the lobby.

[68] The Crown pointed out that he did not say this in his examination-in-chief. He said that he forgot.

[69] There had been a couple of instances where persons had problems with the security officers. She was being very loud. He was concerned about what was going on and that security might have to deal with her. He had met her a couple of times before so he said hi to her. He did not say anything to her at that point about the potential problem with security because he had his groceries and had to drop them off at this apartment. He spoke to her about the security problem when he came back down to the lobby.

[70] The first time that he met her was in 2017 by the Beer Store at Danforth Avenue and Victoria Park Avenue. He and his friends were hanging around smoking and talking. Later, in examination-in-chief he said that this was the third time that he had met her.

[71] The complainant told them that she worked at […] nearby and she was out to have a drink. She asked to join them and they agreed. Some of them were smoking tobacco, some marijuana. The complainant smoked both. He and the complainant exchanged Facebook contact information before he left.

[72] The second time that he saw her was in J.'s apartment one day when he went to see J. He did not go inside because they were busy. He denied telling J. that he was homeless and asking if he could stay with him. He was already living in the building.

[73] The third time that he met her was in the lobby of his building on the day in question. She told him that she was trying to call J. He has known him since 2016. Mr. Ngigi thinks that she mentioned that she was dating him. She was frustrated because he was not responding. She thought that he was in his apartment, but for some reason he would not open the door.

[74] He wanted to be friendly towards her and tell her that if there was a problem she could leave the building and call J. from outside before the residents raised a security issue.

[75] After he spoke to her she asked him where he was going. He told her that he was going to a nearby park to "wait my friend in a park" that was nearby. I take this to be a reference to him waiting for Ken to call him to let him know where and when they were going to meet that night. She asked him if the park was a "cool place". He told her that it was. After four or five minutes they went to the park. He was carrying a plastic bag with three beers. He had a back pack in addition to the bag of beer.

[76] The sun was setting, but the park has lights, including on the pathway. In addition, the lights from a nearby building provide some light. Defence counsel asked him: "How would you describe the overall view – the overall lighting of the park that evening when you were with [the complainant] on October 27". He replied that "It was visibly (sic) lighting, the sun was still up". It was not dark. It was just an evening, right. It was just an evening and there was light; dark had not yet set … It was "almost seven".

[77] It is very hard to understand Mr. Ngigi's answer. Defence counsel used the general phrase "when you were with [the complainant]", which makes it sound as if he was referring to the whole time that he was in the park with the complainant. Mr. Ngigi said previously that the sun was setting when they went to the park. Therefore, it probably set while they were in the park. Mr. Ngigi said that it was "just an evening" and "dark had not yet set". This could cover the beginning of the evening when the sun was setting, but not the rest of the time that they were together in the park.

[78] If defence counsel was referring to the whole time that they were in the park and one concludes from his evidence that the sun was setting when they went to the park and that it set while they were in the park, Mr. Ngigi's answer does not make sense.

[79] Merriam-Webster online dictionary defines evening as:

the latter part and close of the day and early part of the night

the period from sunset or the evening meal to bedtime

[80] Another difficulty with his evidence regarding the time is that in examination-in-chief, he said that he returned to the lobby at 6:10 p.m. after dropping off his groceries and one beer in his apartment. But he also said that the conversation that he and the complainant had in the lobby before going to the park was not "a long conversation".

[81] The Crown pointed out that 50 minutes passed by between 6:10 p.m. and 7:00 p.m. He said "Forgive me, I don't remember the exact time. I – I maybe have said that, but I was not keen with –with the time …" He picked 6:10 p.m. "Because it was – I just came from work. The Crown asked him "So, it's –is it the earlier time do you think, or do you think it's closer to seven at this point"? He said "I would say six to 6:30, approximately. He seems to be guessing.

[82] Mr. Ngigi had not drunk anything or taken any intoxicants at this point. Specifically, he did not have any marijuana. He does not smoke it.

[83] Regarding his clothing, he had steel toed boots with orange laces, black pants, "black jacket with blue stripes, or blue - blue jacket, black jacket and a Maven" on his head. His pants were sweat pants. They did not have a zipper.

[84] When they got to the park the complainant sat on a picnic table. He sat on the ground "a small distance away". He opened a beer. She smoked a cigarette. Later she mixed marijuana with the tobacco, rolled a cigarette and smoked it. She brought the marijuana. He walked around to get away from the odour of the marijuana. She smoked two marijuana cigarettes. She offered him some marijuana. He said that he did not smoke.

[85] Mr. Ngigi contradicted himself regarding the reason that he stayed with the complainant so long in the park talking. In cross-examination on January 22, 2019, he said that "… it was nothing about her personal life, it was about J.". On January 23, 2019, the Crown asked him:

Q. Now, why was it that you wanted to go with the complainant to the park to find out about J.? Why did you need the complainant in order to find out about J.?

A. At the moment it was not about J. really, it was about to know what was going on with her.

[86] He tried to explain the contradiction but he does not succeed. When the Crown asked him "So, was it about her or was it about J.?" He said: "At this point it was about her reacting the way she was reacting in the lobby. But, why was she doing that? She mentioned about J., so, yes, it was to be in line with J.'s – because J. is the one who [inaudible] was making her angry".

[87] On another point, the Crown tried to get Mr. Ngigi to agree that there were a lot of trees in the area of the park where they were, which would make it more secluded. She asked him "And it's a heavily wooded area as well?" He said "… it is a park, so there are trees and there is a path". She tried again: "But, there are a lot of trees". He responded "There are trees". She tried a third time: "So, around your open area with the … bonfire pit and … the area you play for a soccer field, around that there are a lot of trees, correct?" He replied, "Yeah, there are trees". The Crown tried a fourth time, asking "And on the path, on the way up, back to the road, there are a lot of trees there too". He answered, "Everywhere there are trees".

[88] Mr. Ngigi said that he and the complainant spoke about things in general, catching up on each other's lives. She was moody. They would speak normally for a while and then she would think about J. and express that she did not understand why he was not responding to her calls and messages, or opening the door. She got annoyed and angry. She was confused about whether he was in his apartment or not. She spoke about him having seizures.

[89] Mr. Ngigi said that J. is his friend so he was trying to understand what was going on. The reason that the complainant wanted to go to the park with him was to talk about the situation between her and J.

[90] With regard to how long it took him to drink the beer he said that at a leisurely pace it takes him about 20 to 30 minutes to drink a beer. It depends on the circumstances. The Crown pointed out that this means that he was holding on to an empty can for about an hour. He said that he did not hold on to an empty can. It had beer in it when he was holding it. He started to drink as soon as they got to the park. He agreed that it took him 45 to 60 minutes to drink his beer. The Crown put it to him that he was in the park with the complainant for an hour and 40 minutes. He replied:

It was [inaudible] because I had company, right. And this – at this point [the complainant] was the company, and the conversations that were there were conversations that kept us busy talking about – about everything that was happening. So, I didn't have to drink the beer all at once, as quick as I could. As I mentioned earlier, the rate to which I will drink a beer is determined by the kind of company, conversation or surrounding that I'm in.

Q. But, you also mentioned that a leisurely pace for you to drink a beer would be 20 to 30 minutes.

A. Roughly when I'm alone that will take that.

[91] But it is clear from his previous evidence that the 20 to 30 minute time frame is when he has company:

Q. So, that would be – so, how long did it – how long – you know, I appreciate that you don't really want to rush the beer, but how long does it usually take when you're taking your time, how long would it take you to drink a beer?

A. Twenty – 20 minutes ...

Q. Okay.

A. ... 30 minutes.

Q. That's ...

A. Consider with ....

Q. ... a leisurely pace.

A. Yeah, consider – the term is what kind of – again, what kind of company do I have? What kind of conversations are there, you ...

Q. Sure. But, 20 ...

A. ... know ....

Q. ... 30 minutes is generally .....

A. Roughly.

[92] In examination-in-chief, he said that there were three persons sitting at a picnic table 100 meters away. In cross-examination he contradicted himself:

Q. … So, you're talking to a woman that you'd only met once before, in a park. Were there people there the entire time?

A. Yeah, there were people.

Q. And you said that the people that were there were actually at the other side of the park. You said they were about a hundred metres away and the park is only 150 metres, so.

A. Well, it's – it's visually – it's a distant where you can see them. They're just seated, on a tree, just a few metres away from us.

Q. Actually you said a hundred metres, so that's not a few.

A. Approximately.

Q. Okay. So, was it a few metres away, which would be, you know, talking distance or shouting distance, at least, or were they a hundred metres away.

A. A shouting distance.

Q. So ....

A. I was having an approximate distant.

Q. So, not a hundred metres.

A. Approximately.

Q. I'm sorry.

A. Approximately.

[93] Defence counsel asked him: "… did you see anyone walk to or from the path that you and [the complainant] – you enter the park?" Perhaps he could not decipher the question, but he did not answer it exactly. He said: "… it's a very busy park. We have people bringing in their dogs … So, yeah, there were people passing by around the place".

[94] Does "around the place" mean the path to which defence counsel referred? It is difficult to say. In any case, neither he nor the complainant spoke to anyone in the park.

[95] He did not make any advances toward, nor have any physical contact with the complainant. Nor did he tell her that he liked her. He never asked her for a hug. He never took out his penis or exposed it to the complainant.

[96] He only drank one beer. He never put the can down during his conversations with the complainant. When he finished the beer he threw it in the bushes. The beer did not affect him.

[97] Due to her moodiness it was hard to tell if the marijuana affected the complainant.

[98] While they were in the park Mr. Ngigi's friend, Ken, sent him a text telling him that he was on his way and that they should meet somewhere between Coxwell and Main Station. He told the complainant that he had to leave. She suggested that he wait for her to roll another marijuana cigarette and then they could leave because she did not know the path.

[99] He told her that there were different paths that she could take, which "were evident". However, she wanted to follow the same path. He could not wait for her to smoke her marijuana cigarette so she decided to smoke it as they walked. He showed her the path. He was three or four steps in front of her as he showed her the way down the path. He had the plastic bag with the beers in his hand. There were some persons smoking in the parking lot of a nearby building.

[100] As they approached the road she asked him for a beer because he was leaving and she was not sure if J. was going to be home. She was going to stay in the park. He did not think that it was a good idea because "she was really not okay". He was afraid that she would have a negative reaction to the combination of the marijuana and the beer. He refused to give her a beer. He told her that the beers were for him and Ken. He did not have money to buy more.

[101] Before they got to the "opening" there was no physical altercation between him and the complainant while they were on the path. When they got to the opening they "had a conversation about the beer again". The complainant was "very insistive (sic)". She wanted him to call J. He did not want to because he thought that he would answer and the complainant would get upset.

[102] He was ahead of her holding his bag of beer on his left side. Then "from nowhere she just grabbed the bag." He turned and gripped the bag to prevent her from taking it. She grabbed his beer "through the bag" and "that's when we had a pull push with her, 'cause she wanted to take it by force". He held on to the beer. He tried to talk to her about the situation, but to no avail. She had one hand on the bag of beer and "held" him with the other hand by the throat. Then she let go of the bag and started choking him with both hands. He "held a little bit, tried to breathe a little bit, but the more I did that, the more – the stronger the grip was on her and I could not breathe". He could not breathe "for some time".

[103] He dropped the bag of beer, took off her hands from his neck, and pushed her away. Up to this point he had not put his hands on her body. Nor did he ever restrain her movements. He never grabbed her head or her shoulders during the tussle. He never touched her breasts.

[104] Mr. Ngigi is 5' 6" tall. He estimated that the complainant is "probably five-eight, five-nine". He was not sure, but she is taller than he is. The defence did not ask the complainant how tall she was.

[105] The altercation lasted ten to fifteen minutes. It took place at the top of the pathway, at the corner of Lumsden Avenue and Eastdale Avenue. On-coming buses are visible from here. No one approached them as a result of their fighting.

[106] Afterwards, he took his bag of beer and crossed the road. He walked towards the bus stop. She got on the bus. Another person boarded the bus and then he got on.

[107] He went to the back of the bus, after the first stairs and behind the door. He sat down. He was three seats behind her. He did not stare at her. He did not have any interaction with her. He was talking to Ken on the phone. This contradicts what he told the court in cross-examination. The Crown asked him "who are you communicating with on your cell phone on the bus"? He replied "No, I was just on my cell phone. Not so sure, media … I was on Facebook".

[108] He did not notice when she went to speak to the bus driver, but he noticed her "coming back to sit down". Later, in cross-examination, he said that he could not "really remember" if he was looking at his phone, but he did not see the complainant go speak to the driver. The Crown told him that the bus's surveillance video shows that he looked up when she went to speak to the driver. He repeated that he did not see her going to speak to the driver.

[109] Mr. Ngigi got on the bus because he wanted to meet Ken where he asked him to meet him. He intended to get off at the Doncaster stop. He did not have to go all the way to Main Station. He could get off at Doncaster and walk to the Petro Canada gas station to meet Ken. It was a six or seven minute walk.

[110] The Crown indicated that the gas station was just under two kilometres from where he got on the bus. The Doncaster stop was just one stop from where he got on the bus. It was approximately 1/8th of the way to the gas station. The Crown asked him why he would take such a short ride and then walk the majority of the way to the gas station. He replied that "It was end (sic) route to where I was going". Eventually I would have gone to Petro Canada and Ken was coming from downtown. He was still not there". He did not want to keep Ken waiting. He thought that this was the quickest way for him to get to the Petro Canada station.

[111] The Crown pointed out on a Google map that the bus ride that he took was only 400 meters. She suggested that the he could have gone to Main Station and walked to the Petro Canada station from there along Danforth Avenue. The map shows that it was much quicker to get to Petro Canada from Main Station than "going all the way across Donlands and then down". He agreed.

[112] But he said that he wanted to "come up from Doncaster". He said that walking there instead of getting there before Ken made sense to him. He did not walk the entire way because the bus came. The Crown asked him why he ran for the bus. He said that he did not. He walked toward the bus. However, previously she asked him "And so, the bus that you're running to is just, actually a little south of even […address…], right"? He answered the question without correcting her about running.

[113] He said that two persons got on the bus and then he got on. He did not see the complainant going towards the bus because he had left her behind him. But she got on before him. They took different routes to get to the bus stop, which evidently caused her to get in front of him at the bus stop.

[114] He pressed the button to get off there, but the bus did not stop. The ride to the subway station is four to five minutes. He did not notice that anything was out of the ordinary until they got to Main subway station.

[115] The driver kept circling the station without stopping. He went up to the driver to ask why she was doing this. After circling eight to ten times, the bus stopped at the station. He and the other passengers got off of the bus.

[116] Mr. Ngigi's destination was between Coxwell Station and Main Station. He went to the subway platform. He planned to get off at Coxwell Station, but the trains were not stopping. He decided to leave the station and walk. The Petro Canada station where he was going to meet Ken was only about a three or four minute walk away.

[117] The Crown asked him why he would not have planned to get off at Woodbine Station, which is the station between Coxwell and Main stations. He said "Allow me to correct myself". He was familiar with the area, having live there for five years, but he was not sure what the next station was. If it was Woodbine, then that is where he was going to get off.

[118] He did not notice anyone following him when he left the subway station. Nor did anyone bring to his attention any incident. He never saw the complainant again. He met Ken as planned.

Bus Driver Testimony

[119] The bus driver, Ms. Elizabeth Briscoe, testified. She said that on the day in question she had been a TTC driver for 25 years. At 8:45 p.m. or 8:47 p.m. she picked up the complainant and Mr. Ngigi at the Eastdale bus stop. The complainant appeared fine. Nothing about her demeanour caused Ms. Briscoe any concern.

[120] Shortly afterwards, the complainant came up to her and told her that she had been raped by a man that just got on the bus. She appeared normal and fine at this point as well. Ms. Briscoe's friend, Peter, was sitting next to her when the complainant spoke to her.

[121] Ms. Briscoe identified the complainant and Mr. Ngigi on the bus's surveillance videotape. The videotape shows them getting on the bus. Mr. Ngigi had a plastic bag. It also shows that after the complainant sat down, she got up to go talk to Ms. Briscoe. Then she went back to her seat.

[122] The videotape shows that Mr. Ngigi sat down beside the rear door of the bus. At one point, he went to the front of the bus. Ms. Briscoe could not remember if he said anything. He was calm. He did not have the odour of an alcoholic beverage on him. There was no indication that he was intoxicated.

[123] The videotape shows that Mr. Ngigi got up to get off of the bus, but Ms. Briscoe did not open the door to let him out. He asked her why she did not stop. He was not aggressive or rude.

[124] The videotape shows that the complainant and Mr. Ngigi did not interact with each other on the bus. Ms. Briscoe said that when they got on the bus there was no indication that they were interacting either.

[125] There are two stops between the Eastdale stop and the subway station. Mr. Ngigi rang the bell to get off at the last stop before the subway. She pretended not to hear the bell and kept driving to the subway station.

[126] Ms. Briscoe notified her supervisors and asked for help. They told her to go to the subway station and the police would be there. She circled the station several times without letting anyone off of the bus. She told the passengers that there was an emergency at the subway station and that she could not stop there.

[127] When she finally stopped everyone got off. She told the complainant to wait for the police, which she did.

Passenger Testimony

[128] Mr. Peter Sardelis testified that he was at the front of the bus speaking with Ms. Briscoe, whom he knows. A female came up to speak to Ms. Briscoe. She seemed upset, confused and scared. Ms. Briscoe told him that she reported that she had been sexually assaulted. Ms. Briscoe called for help but to no avail. She told him to call 911, which he did.

[129] When they got to the subway station, Ms. Briscoe circled around it several times. Mr. Ngigi came up to ask her why she was doing that. Mr. Sardelis did not notice any smell of alcohol on Mr. Ngigi. He did not show any indicia of impairment. Nor was he panting or sweating. When she stopped, Mr. Ngigi got off the bus through the back door. The complainant stayed with Ms. Briscoe.

[130] He went to see where Mr. Ngigi went. He saw him walking a bit fast towards the exit. He took a picture of Mr. Ngigi that shows that he did not have a knapsack.

[131] Mr. Sardelis followed him down the street. Mr. Ngigi was not running or walking fast, but he turned back to look between one and three times. Defence counsel did not ask Mr. Ngigi to comment on this evidence. Mr. Ngigi went to a hardware store and stood there.

[132] A TTC supervisor walked by. Mr. Sardelis looked away for a short time. When he looked back at where Mr. Ngigi had been he was gone. He did not know where he went. He returned to Main Station. He saw the police speaking to Ms. Briscoe and to the complainant.

[133] That was all of the evidence.

Analysis

[134] The issues in this case are the reliability and credibility of the witnesses. The Crown has the onus to prove beyond a reasonable doubt that Mr. Ngigi committed the offences with which he is charged. Mr. Ngigi has nothing to prove.

[135] D.W. v. The Queen states the applicable law in a case where credibility is the issue:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[136] In Nadeau v. The Queen, the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events].

[137] In R. v. Nimchuk, the Ontario Court of Appeal said that, "if reasonable doubt existed in view of conflicting testimony, as to where exactly the truth lay, it would of course, require an acquittal."

The Complainant's Evidence

[138] There were many instances in which the complainant's evidence was contradictory, inconsistent, or otherwise problematic:

Mr. Ngigi's clothing: In examination-in-chief, she said that he had on jeans and a hat; in cross-examination, she said that he did not have a hat, then she said that she could not remember his clothing. In her statement to the police she said that he did not have a hat.

Mr. Ngigi's sobriety:

• When they left the building to go to the park: In examination-in-chief, she said that when they started to go to the park he was drunk; in cross-examination, she said that he was sober; later, she said that she could not remember.
• At the park: she said that he was inebriated. She did not mention this in her statement to the police.
• On the bus: he was drunk.

Mr. Ngigi's backpack: In examination-in-chief, she said that he had one; in cross-examination, she said that she could not say 100% that he had one, he always has one.

Mr. Ngigi's pants: In examination-in-chief, she said that his pants had a zipper. In her statement to the police she said that he wore track pants.

Mr. Ngigi's penis: In examination-in-chief, she said that it was semi-erect. In cross-examination, she said that this was a guess.

[139] In addition, to the above mentioned factors, there are other problems with the complainant's reliability.

[140] I am particularly concerned that at times she made assumptions and testified as if they were accurate. For example, she was guessing when she testified that Mr. Ngigi's penis was semi erect.

[141] She also assumed that he had a backpack. This turned out to not be true. She said it because whenever she had seen him before he always had one.

[142] Another example of her assuming things and reporting them as facts is when she said that Mr. Ngigi was wearing pants with a zipper. The Crown argued that she assumed that he was wearing pants with a zipper because had he been wearing track pants, in order to pull out his penis he would have had to expose his buttocks, which she did not remember seeing. She did not explain how she could have seen his buttocks though, if he were coming at her with his penis in his hand. He would have to have been facing her to do this and his buttocks would not have been exposed to her.

[143] Her tendency to make assumptions and report them as facts damaged the reliability of her evidence.

[144] In addition, she testified that she was high on marijuana. She smoked about 1 gram. Although she said that it did not affect her recollection of the events, she admitted that she made some mistakes in her statement to the police, for example, regarding what Mr. Ngigi was wearing.

[145] She ascribed these mistakes to being in "shock or something", not to the marijuana interfering with her memory. Nevertheless, I interpret being "high" as meaning that she was intoxicated to a certain extent by the marijuana. Therefore, it is reasonable to conclude that this intoxication must have affected her ability to observe and recollect. I do not think that expert testimony is required in order to draw this conclusion. It is common knowledge that if one is intoxicated it will affect one's ability to observe and recollect.

[146] Another instance of her not recollecting something that one would expect her to remember is whether she used one or two hands to choke Mr. Ngigi.

[147] When I compare the complainant's evidence to that of Ms. Briscoe and Mr. Sardelis, I note that neither Ms. Briscoe nor Mr. Sardelis noticed any indicia of impairment by alcohol with regard to Mr. Ngigi. This is contrary to the complainant's assertion that he was drunk.

[148] The Crown maintained that Ms. Briscoe and Mr. Sardelis were not sufficiently close to Mr. Ngigi to notice indicia of impairment. However, Ms. Briscoe said that he came up to her and spoke to her. Mr. Sardelis was seated nearby. I think had Mr. Ngigi been drunk they would have noticed.

[149] Another instance is that the complainant said that Mr. Ngigi was angry on the bus. Neither Ms. Briscoe nor Mr. Sardelis noticed this.

[150] I accept Ms. Briscoe's and Mr. Sardelis' evidence over that of the complainant that Mr. Ngigi was not drunk or angry on the bus. They were not high or intoxicated in any manner. Their evidence was given in a straightforward manner. They were not caught in any internal inconsistencies or contradictions within their own evidence. The only area in which they contradicted each other was that Ms. Briscoe said that the complainant was fine when she spoke to her. Mr. Sardelis said that she was distraught. Based on the evidence for me I cannot resolve who is accurate. However, I do not think that it damages their credibility or reliability with regard to the other aspects of their evidence.

[151] Another instance of the complainant giving dubious evidence is when she said that she saw Mr. Ngigi staring at her on the bus. She testified that she saw the whites of his eyes out of the corner of her eye. But the surveillance video shows that he was seated behind her and she was looking straight ahead. I do not understand how she could have seen this in the way that she described given their relative positions.

[152] The Crown argued that many of the complainant's inconsistencies and contradictions involved smaller issues that did not relate to the core of the allegations. This is true to a certain extent, however, when viewed in their totality they reveal that in the instances described above, although the complainant was not sure about what she was saying, she testified as if she were. This reflects on the totality of her evidence. It damages her reliability and credibility. It makes me wonder what other things that she said were not accurate, but were just not uncovered as being inaccurate.

Mr. Ngigi's Evidence

[153] There were also contradictions and inconsistencies in Mr. Ngigi's evidence.

His reason for buying the beer: In examination-in-chief, he said that there was no special reason. Then he said that it was to share with his friend, Ken.

His plans to meet Ken: In cross-examination, he said that he planned to meet him at a pub, then he said that it was not at a pub.

Why he spoke to the complainant: In cross-examination, he said that it was to find out what was going on with J. Then he said that it was to find out what was going on with the complainant.

Distance between he and the complainant and the persons at the picnic table: In examination-in-chief, he said that it was 100 meters. In cross-examination, he said that it was approximately a few meters.

Speaking to Ken on the bus: In examination-in-chief, he said that when he was on the bus he spoke to Ken. In cross-examination, he said that he did not, he was just on social media on his phone.

I grant that Mr. Ngigi's evidence contained several contradictions and inconsistencies as well. The Crown did a good job of exposing these in cross-examination.

[154] However, in this regard it can also be said that these inconsistencies and contradictions did not deal with the core allegations, which he denied. They dealt mainly with side issues.

[155] He tried to explain the contradictions and inconsistencies, but mostly to no avail. I agree that this painted a picture of someone who was not being altogether truthful or accurate.

[156] I acknowledge that his explanation of the route that he took to meet Ken was quite peculiar. The Crown did a good job of highlighting the questionable travel decisions that he made. However, different persons may choose different routes to get to a destination. Some will be more efficient than others. In the circumstances before me, although some of Mr. Ngigi's decisions about his itinerary were odd, and I may have chosen differently, I cannot say that they make him a prevaricator.

[157] Regarding the complainant's attack on him to get a beer, I doubt his story that the complainant did this. She had not been drinking beer. She was smoking marijuana as a means of altering her consciousness. I find it dubious that she would want a beer so that she could return to the park alone, at night, to drink it while waiting to see if J. called her, which appeared increasingly doubtful.

[158] Her evidence was that she did not know her way around the park. She was unchallenged on this point. I do not believe that she would return to this unfamiliar environment at night to have a beer alone to wait and see if her boyfriend contacted her.

[159] This is not an assumption based on a generality of how I think that a person in the complainant's situation would act. It is based on this particular complainant and on the particular evidence in this case, especially on the complainant's evidence of how she felt in the situation.

[160] But however unlikely is Mr. Ngigi's story about the beer attack, he does not have to prove that he is innocent. The onus is on the Crown to prove beyond a reasonable doubt that he is guilty. As D.W. points out, even if I have doubts about the evidence of the accused, I have to consider all of the evidence in order to determine whether the Crown proved the case beyond a reasonable doubt.

[161] After considering all of the evidence, all of the circumstances, the law, and counsels' submissions, I find that I do not necessarily believe Mr. Ngigi, nor does the defence evidence raise a reasonable doubt in my mind. However, based on all of the other evidence and on my comments above, I find that although he may have committed the offences with which he is charged, I am not convinced beyond a reasonable doubt that he committed them.

[162] Therefore, I find him not guilty of all the charges. All the charges are dismissed.

Released: July 9, 2019

Signed: Justice J. W. Bovard